Trump Was Right to Leave the Paris Agreement. Why He Shouldn’t Have Had to Withdraw in the First Place.

(TĐH: The Daily Signal is the online paper of Heritage Foundation, most influential conservative thinktank of the US,located in Washington DC)

President Donald Trump announced on June 1 that the U.S. will withdraw from the Paris Agreement, which would have required the U.S. to ramp up energy regulations in coming years. (Photo: Kevin Dietsch/UPI/Newscom)

Commentary By

Brett D. Schaefer is the Jay Kingham fellow in International Regulatory Affairs at The Heritage Foundation. Schaefer analyzes a broad range of foreign policy issues, focusing primarily on international organizations and sub-Saharan Africa. Read his research. ____________________________

Supporters of the Paris Agreement have expressed considerable angst over President Donald Trump’s decision to leave the climate agreement last week.

Regardless of the merits of that decision—although for the record, Heritage Foundation analysts recommended that the U.S. withdraw—Trump should not have had to make that call.

The Paris Agreement had all the hallmarks of a treaty and should have been submitted by President Barack Obama to the Senate for advice and consent, as required under Article II of the U.S. Constitution.

Instead, Obama signed the Paris Agreement as an executive agreement.

He was able to do so because of ambiguity over how international agreements are implemented in the United States.

There are different types of international agreements: treaties, executive agreements, and congressional-executive agreements. Precisely which agreements constitute treaties requiring Senate advice and consent in accordance with Article II of the Constitution, and which do not, is not always clear.

The uncertainty persists despite internal guidance adopted by the State Department, known as the Circular 175 procedure that lays out eight factors for determining whether an international agreement should be negotiated as a treaty or an “international agreement other than a treaty.”

While there is no statutory language setting clear policy in this area, there is an extensive history of how different subjects have been categorized. Moreover, there is record of deliberations from 1992 when the Senate gave its advice and consent to the U.N. Framework Convention on Climate Change.

Both indicate that the Paris Agreement should have been submitted to the Senate for advice and consent. As former Heritage research fellow Steven Groves wrote a year ago:

The Obama Administration’s unilateral treatment of the Paris Agreement is particularly disquieting for two reasons: (1) the agreement has all the hallmarks of a treaty that should be submitted to the Senate for its advice and consent under Article II, Section 2, of the U.S. Constitution; and (2) the agreement contains “targets and timetables” for emissions reductions and, as such, the Administration’s failure to submit the agreement to the Senate breaches a commitment made by the executive branch to the Senate in 1992 during the ratification process of the [U.N. Framework Convention on Climate Change]. …

In treating the Paris Agreement as a sole executive agreement, President Obama is using the fact that there is no statutory definition of what is and is not a ‘treaty.’ This strategy, however, ignores the fact that the State Department has an established process, known as the Circular 175 Procedure (C-175), to guide its decision to designate an international agreement.

Obama chose not to treat the Paris Agreement as a treaty for one overriding reason: He knew it would not receive support from the two-thirds of the Senate necessary for ratification.

In short, he circumvented proper procedures in an effort to secure his climate legacy.

As many have noted, Obama’s reliance on executive authority has made his legacy vulnerable to changes by the next president. Obama lost the gamble that his decisions would remain in place when Trump was elected.

Trump followed through on his campaign promise last week when he announced that the U.S. would withdraw from the Paris Agreement.

Trump’s decision was based on a number of economic, political, and legal reasons. However, his apparent path of withdrawal—withdrawing from the Paris Agreement under the terms outlined in Article 28 (1) and (2) of the treaty—will not be complete until November 2020.

Trump should also give serious thought to supplementing his withdrawal from Paris with a declaration that the agreement is a treaty that Obama entered into in contravention of both past U.S. practice, and promises made to the Senate in 1992—and, therefore, is not binding on the U.S.

This may face legal challenge, but it would have two benefits.

First, arguing that the Paris Agreement is a treaty would make it more controversial for a future administration to reverse Trump’s withdrawal and, again, sign the U.S. up to the Paris Agreement as an executive agreement.

Second, it would provide a long-overdue defense of the legislative branch’s constitutional role in foreign policy, which has been eroding for decades.

The fact that more senators were not and are not outraged by Obama’s usurpation of their constitutional authority is extremely troubling.

Presidents should have to consult with Congress and secure broad consent—whether concurrent or pre-existing—before entering into agreements like Paris.

The authors of the U.S. Constitution required advice and consent of two-thirds of the Senate prior to treaty ratification.

They did so because they knew the dangers of entering into binding agreements with foreign powers without ensuring that the agreement has the support of a broad cross section of the American public and of the individual states.

Public officials on both sides of the aisle should be concerned over this matter. After all, senators often serve in office far longer than individual presidents and, therefore, overlap with presidents of the opposite party.

To address this issue over the long term, Congress should engage with the Trump administration to examine past practice on how international agreements have been treated historically.

Together, they should specify the exact issues or policy context that should mandate international agreements be submitted to the Senate as treaties under Article II. Congress should then codify this practice in law, both for treaties and other international agreements.

About Trần Đình Hoành

I am an attorney in the Washington DC area, with a Doctor of Law in the US, attended the master program at the National School of Administration of Việt Nam, and graduated from Sài Gòn University Law School. I aso studied philosophy at the School of Letters in Sài Gòn.
I have worked as an anti-trust attorney for Federal Trade Commission and a litigator for a fortune-100 telecom company in Washington DC. I have taught law courses for legal professionals in Việt Nam and still counsel VN government agencies on legal matters. I have founded and managed businesses for me and my family, both law and non-law.
I have published many articles on national newspapers and radio stations in Việt Nam.
In 1989 I was one of the founding members of US-VN Trade Council, working to re-establish US-VN relationship.
Since the early 90's, I have established and managed VNFORUM and VNBIZ forum on VN-related matters; these forums are the subject of a PhD thesis by Dr. Caroline Valverde at UC-Berkeley and her book Transnationalizing Viet Nam.
I translate poetry and my translation of "A Request at Đồng Lộc Cemetery" is now engraved on a stone memorial at Đồng Lộc National Shrine in VN.
I study and teach the Bible and Buddhism. In 2009 I founded and still manage dotchuoinon.com on positive thinking and two other blogs on Buddhism. In 2015 a group of friends and I founded website CVD - Conversations on Vietnam Development (cvdvn.net).
I study the art of leadership with many friends who are religious, business and government leaders from many countries.
In October 2011 Phu Nu Publishing House in Hanoi published my book "Positive Thinking to Change Your Life", in Vietnamese (TƯ DUY TÍCH CỰC Thay Đổi Cuộc Sống).
In December 2013 Phu Nu Publishing House published my book "10 Core Values for Success".
I practice Jiu Jitsu and Tai Chi for health, and play guitar as a hobby, usually accompanying my wife Trần Lê Túy Phượng, aka singer Linh Phượng.